Full Judgment
R.N. Sahay, J.
1. Appellant Allauddin Seikh was aged 40 years at the time of his conviction. He has been convicted under Section 376 of the Indian Penal Code and sentenced to undergo R.I. for seven years. The appellant was tried by the Sessions Judge, Santhal Parganas.
2. This appeal has been preferred from Jail. The appellant was not granted bail. He has served out the sentence. Legality of the conviction of the appellant has been challenged in this appeal. Mr. A. Amanullah appears as Andcus Curiae in this appeal.
3. The prosecution story is that the prosecutrix Sajanoor Bibi was aged about 18 years. Late in the night of 8-9-1989, she went to the shop of the appellant to purchase Azwain. The appellant run a Grocery Shop in Village Devtala, P.S. Pakur in the district of Sahebganj. It has come in evidence that the girl was living with her parents and elder brother, still she was sent to purchase Azwain at 10,00 p.m. It has also come in evidence that the appellant was living with his family members. It is alleged that she was raped by the appellant in the shop itself. She raised alarm on which two villagers came to whom she narrated about the occurrence. The First Information Report was lodged on the next day at 3.00 p.m.
4. The defence of the appellant was that the girl was lady of questionable character and she made a concocted charge against the appellant, who lived with his wife and children in his house.
5. The prosecution produced 11 witnessed in support of the allegation of rape. Father, mother and brother of the girl have supported the fact that the girl narrated to them that she had been raped by the appellant. The prosecutrix has given the evidence that she was raped by the appellant in his shop.
6. The doctor, who had examined the prosecutrix, was not produced as witness before the trial Court. It appears that on the prayer of the appellant, the Court ordered for summoning the doctor but the doctor was not summoned and the case was closed on the next day. Medical report was not produced in Court. The prosecutrix in her evidence has not stated that she told about the incident to her parents and brother. Her father has stated that he came to know about the incident from his wife. His wife said that she heard about the incident from her husband. According to the defence, no external injury or sign of rape was found on the so-called victim. Thus, the important evidence has been shut out by the prosecution without any reasonable explanation. It was the duty of the Court to summon the doctor because in a case of rape medical evidence is very important and in a very rare case, conviction can be founded on the testimony of the prosecutrix only.
7. The Investigating Officer had seized blood-stained petticoat of the prosecutrix but the same was not produced nor any report of forensic expert was filed. The trial Court has held that the doctor did not find any evidence of rape.
8. In my view, the conviction of the appellant on the meagre evidence brought by the prosecution is not proper. I am, therefore, constrained to allow this appeal by giving benefit of doubt to the appellant.
9. This appeal is accordingly allowed and the conviction of the appellant is set aside and he is acquitted of the charges.
10. Let a copy of this judgment be handed over to Mr. A. Amanullah.